Implementing the *New* ADA and DOJ Regulations

Implementing the “New” ADA
and DOJ Regulations
A Policy Tele-Institute for Higher
Education
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Session 1: Transforming Law into
Policy and Practice
Presenters
Irene Bowen, ADA One, LLC
L. Scott Lissner, The Ohio State University
October 5, 2010
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Presenters
Irene Bowen, J.D.
ADA One, LLC
•President of ADA One, LLC
•Consulting, training, speaking
•ADA, ABA, section 504
•Self-evaluations and transition plans, policy compliance
•Former Deputy Chief, Disability Rights Section, DOJ
•Former Deputy General Counsel, US Access Board
•Co-founder, National Center for Law and Deafness
•AHEAD presenter and trainer (national, state)
•Board member, National Association of ADA Coordinators
•Part-time senior policy advisor with LCM Architects
•City of Chicago title II plan
•Higher education: reviews and plans
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Presenters
L. Scott Lissner
The Ohio State University
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University ADA Coordinator & 504 Compliance Officer
• Associate, John Glenn School of Public Policy
• Lecturer at the Knowlton School of Architecture, Moritz
College of Law & Disability Studies
AHEAD
• President Elect
• Co-Chair, Public Policy & Government Relations Committee
OTHER
• Appointed, Ohio Governor's Council For People With Disabilities
• Chair, ADA-OHIO
• Appointed, State HAVA Committee
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• Appointed, Columbus Advisory Council on Disability
INTRODUCTION
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THE ADA @ 20
“We are experiencing a Renaissance
In enforcement and support”
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AGENDA
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Agenda
• It takes a campus
• Overview of DOJ’s rules
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Examinations and courses
Assembly areas and ticketing
Housing
Effective communication
Service animals
Mobility devices
Facilities: new construction, alterations, existing
facilities
• Q and A
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…Agenda
• Other legislation and rulemaking
– HEOP and the Commission on Alt Media
– 21st Century Video Act
– Others
• DOJ’s ANPRM’s (pre-rules)
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Accessibility of web information and services
Movie captioning and video description
Next generation 9-1-1
Equipment and furniture
Policy and planning
Approaches and strategies: who to involve and how
Tools and assistance
Q and A
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IT TAKES A CAMPUS
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New accessibility standards
• “2010 Standards”
– Wholesale adoption of 2004 ADAAG (Access
Board’s ADA Accessibility Guidelines) PLUS
– DOJ additions to 2004 ADAAG
• Will be published in “one book” version
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Beyond buildings: other changes
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Service animals
Mobility devices
Communication
Hotel reservations
Event ticketing
Certification process (state/local codes)
Complaint investigation
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Challenges
• Learning the new Standards
• Figuring out what to do in the next six
months or 18 months
• Understanding the “safe harbors” (new
concept)
• Modifying certain types of policies
• Keeping up with other regulatory
developments
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Off to a good start
• First, learn the facts
• Start alerting those affected: planners,
facilities, residential life, athletics, IT, academic
affairs, others
• Some basic training?
• Make some decisions
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EXAMINATIONS AND COURSES
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Title III Section 36.309 (b)(1)
Request for documentation should be
narrowly tailored to ascertain the
individual's need for the requested
modification or auxiliary aid.
Title III Section 36.309 (b)(1)
Give considerable weight to documentation of
past modifications, accommodations, or
auxiliary aids or services received in similar
testing situations including those provided in
response to an Individualized Education
Program or Section 504 Plan.
Title III Section 36.309 (b)(1)
Generally, a testing entity should accept without
further inquiry documentation provided by a
qualified professional who has made an
individualized assessment of the applicant.
Appropriate documentation may include a letter
from a qualified professional or evidence of a prior
diagnosis, accommodation, or classification, such as
eligibility for a special education program.
Title III Section 36.309 (b)(1)
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Focus on need for accommodation
Give weight to accommodation history
Give deference to treating professionals
Give deference to clinical and professional
narrative
Title II Entities are unlikely to be held to a lesser
standard
HOUSING
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Title II Section 35.151(f)
Title III Section 36.406(e)
Housing at a Place of Education
New category for residence halls.
Meet the requirements for transient lodging and
specific requirements for accessible routes
throughout the unit and accessible turning spaces
and work surfaces in kitchens from the residential
facilities standards
Apartments or townhouse facilities that are
provided with a lease on a year-round basis
exclusively to graduate students or faculty and
that do not contain any public use or common
use areas available for educational programming
must comply with the requirements for
residential facilities in sections 233 and 809 of
the 2010 Standards.
ASSEMBLY AREAS AND TICKETING
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Section 35.151(g) & Section 36.308
Assembly Areas
Vertical Dispersion & Line of Sight
Stage Access
No additional requirements for captioning of
communications or emergency information
Event ticketing
•Distribution outlets
•Clear seating charts
•Ticket transfers
•“Sell outs” and accessible seats
•Equivalent pricing and access limitations
•Verification
EFFECTIVE COMMUNICATION
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Sections of regulations
• Title II: Sections 35.104, 35.160, 35.161
• Title III: Sections 36.104, 36.303
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Types of auxiliary aids and services
• Additions to examples
- Exchange of written notes
- Accessible electronic and information
technology
- Computer-aided transcription services
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…Types of auxiliary aids and services
• Other examples of auxiliary aids and services
- Brailled displays
- Screen reader software
- Video remote interpreting (VRI)
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“Qualified reader” and “qualified
interpreter”
• “Qualified reader” defined:
– One who reads effectively, accurately, impartially
– One who can use necessary vocabulary
• “Qualified interpreter” modified
– Includes sign language, oral, and cued speech
interpreters
– Oral and cued speech interpreter defined
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Companions
• Companions
– Covered entities must communicate effectively
with companions, as appropriate
– Family members, friends, associates
• Can’t require person to bring own interpreter
• Can’t rely on companions to interpret except
in emergency or by request
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Other issues
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Medical care settings
Privacy considerations
Missed appointments
Emergency communication
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Automated attendant systems
These include automated
voice mail, interactive
voice response systems
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…Automated attendant systems
If provided, must
ensure effective
communication in real
time with individuals
using auxiliary aids
and services (TTY’s,
TRS). Sections 35.161,
36.303(d)(1).
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TRS calls
• Entity must answer
telecommunications
relay calls in same
manner as it answers
others.
• Sections 35.161(c) and
36.303(d)(2).
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Video remote interpreting
• Increasingly used
• More common
in hospitals
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…Video remote interpreting
DOJ sets performance standards
– Quality of video and audio
• High quality, clear, real-time, full-motion
– Dedicated high-speed connection
– Picture:
• Clear, sufficiently large, and sharply delineated
• Heads, arms, fingers
– Voices: clear and easily understood transmission
– Quick set-up: training of users
Sections 35.160(d), 36.303(f)
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Areas not addressed in final rules
• ATM’s: no safe harbor for communicationrelated elements
• Captioning at sporting venues
• Movie captioning
• See discussion of each of these in title III
preamble, pages 56284-56287 of Federal
Register publication.
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SERVICE ANIMALS
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Sections of regulations
• Title II: Sections 35.104, 35.136
• Title III: Sections 36.104, 36.302(c)(2)-(9)
Definition
• Definition: a dog that
does work or performs tasks
for the benefit of an individual
with a disability (including
psychiatric, cognitive, mental)
M. COLLEEN MCDEVITT, Columbiamissourian.com
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Examples of tasks
• Assist during seizure
• Retrieve medicine or other items
• Help individual with
dissociative identity disorder
to remain grounded
• Prevent/interrupt impulsive
or destructive behavior
• Assist with balance, stability
• Provide non-violent protection
or rescue work
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Emotional support/comfort?
If this is the only function,
not considered a
service animal
Dilip Vishwanat/Getty Images, for The New York Times
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Can ask only two questions
• Is this service animal required
because of a disability?
• What work or tasks is the animal
trained to perform?
Can’t ask about disability
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Other issues
• An entity can exclude a service animal if
• it is not controlled or
• it is not housebroken
• Covered entity is not responsible for care or
supervision of a service animal
• No “service animal” license or
documentation required
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Miniature horses
• Allowed if
– Reasonable
– Individually trained
• Assessment factors
– Type, size, weight
– Handler’s control
– Whether housebroken
– Safety requirements of
facility
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Caution: other laws also apply
• Fair Housing Act: Department of Housing and
Urban Development
• Department of Transportation (airlines,
airports, bus travel)
• Air Carrier Access Act
• Section 504 regulations, e.g., HUD’s
• State and local requirements
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MOBILITY DEVICES
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Sections of regulations
• Title II: Sections 35.104, 35.137
• Title III: Sections 36.104, 36.311
Wheelchairs
• Definition of “wheelchair”
• Use of wheelchairs and manually-powered
mobility aids such as walkers, crutches, canes,
braces must be permitted -– by individuals with mobility disabilities
– in any area open to pedestrian use.
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Other Power-Driven Mobility Device
(OPDMD)
“[A]ny mobility device
powered by batteries,
fuel, or other engines—
whether or not designed
primarily for use by
individuals with mobility
disabilities—that is used
by individuals with
mobility disabilities for
the purpose of
locomotion.”
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Use of OPDMDs
• Covered entity must make reasonable
modifications to permit individuals with
mobility disabilities to use OPDMDs -unless the entity can demonstrate that the
class of OPDMD cannot be operated
in accordance with legitimate safety
requirements adopted by the entity.
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OPDMD Assessment Factors
Sections 35.137(b)(2) and 36.311(b)(2)
1. The type, size, weight, dimensions, and speed of device
2. The facility’s volume of pedestrian traffic
3. The facility’s design and operational characteristics (e.g.,
indoors/outdoors, square footage, the density and
placement of stationary devices, and the availability of
storage, if requested)
4. Whether legitimate safety requirements can be established
to permit the safe operation of OPDMD in the specific facility
5. Whether use creates a substantial risk of serious harm to the
immediate environment or natural or cultural resources, or
poses a conflict with Federal land management laws and
regulations.
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Questions
• Can request a “credible assurance” that an
OPDMD is required because of the person’s
disability.
• May not ask about nature and extent of
disability.
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DOJ suggestion
Develop a policy clearly stating circumstances
when use of OPDMD’s is permitted.
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FACILITIES: NEW CONSTRUCTION,
ALTERATIONS, EXISTING FACILITIES
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The Basics: new construction and
alterations
• New standards for new construction and
alterations
– DOJ adopts 2004 ADAAG, based on model codes
and ANSI (sections 35.151(c), (d); 36.406)
– For the first time, certain areas are included in the
Standards (and 2004 ADAAG), e.g., judicial,
correction, detention facilities; play areas,
swimming pools
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…The Basics: new construction and
alterations
• DOJ adds specific provisions (see sections
35.151(a),(b),(c)(5),(d)-(k); 35.152; 36.406(b)-(g))
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Path of travel in title II
Places of lodging
Assembly areas
Medical care facilities
Social service centers
Housing at a place of higher education
Detentions and corrections
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Time frames
“Effective date” -- March 15, 2011
• Generally applies to almost everything BUT
the Standards
– Service animals
– Mobility devices
– (Not hotel reservation policies -- 18 months)
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…Time frames
“Compliance date” -- March 15, 2012
• New construction and alterations MUST comply
with the Standards
• In the meantime, choose a standard
– Title III: 1991 or 2010 Standards
– Title II: 1991 Standards, 2010 Standards, or UFAS
(Uniform Federal Accessibility Standards)
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Existing facilities under title II
• Basic requirement stays: Each service, program,
and activity must be accessible when viewed in
its entirety (section 35.150(a)).
• Existence of barrier is measured
by looking to the Standards
• Remedy to barrier is measured
the same way
• SO what happens when the “measure” changes?
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Program accessibility and safe harbor
(title II)
New safe harbor:
Existing elements that comply with current
requirements are “safe” from further changes
just for the sake of program accessibility.
Section 35.150(b)(2)(i).
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Safe harbor
Safe harbor is not applicable to
• Alterations
• Elements addressed by supplemental
requirements in 2010 Standards
– Play and recreational facilities
– Children’s facilities, etc.
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Existing facilities under title III
• Under title III, ADA requires removal of barriers to
extent “readily achievable” (section 36.304)
• Existence of barrier is measured
by looking to the Standards
• Remedy to barrier is measured
the same way
• SO what happens when the “measure” changes?
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Title III safe harbor:
barrier removal
• New concept:
If existing element complies with 1991
Standards, it’s “safe” from further barrier
removal under any stricter or new
requirements.
• Applies element-by-element
• Applies only if element hasn’t been altered
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…Title III safe harbor:
barrier removal
• Actual language:
36.304(d)(2)(i). Elements that have not been altered
in existing facilities on or after March 15, 2012, and
that comply with the corresponding technical and
scoping specifications for those elements in the 1991
Standards are not required to be modified in order to
comply with the requirements set forth in the 2010
Standards.
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…Title III safe harbor:
barrier removal
• Example:
1991 Standards: Controls can’t exceed 54” for side
reach.
2010 Standards: Controls can’t exceed 48” for side or
front reach.
Your controls are all at 50” for side reach.
If you don’t alter them after March 2012, controls
can stay where they are.
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…Title III safe harbor:
barrier removal
The finer points
• Applies element by element
• It can’t be used for elements that had no
requirements under the 1991 Standards, i.e., where
“elements are subject to supplemental
requirements”
– Swimming pools
– Play areas
– Others listed in sec. 36.304(d)(2)(iii)
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QUESTIONS AND ANSWERS AND
MUSINGS
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